Citation Nr: 0530978
Decision Date: 11/17/05 Archive Date: 11/30/05
DOCKET NO. 04-10 034 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder, to include post-traumatic stress disorder (PTSD).
INTRODUCTION
The veteran served on active duty from January 1966 to
November 1967.
This case comes before the Board of Veterans' Appeals (Board)
from a rating decision of March 2003 from the Regional Office
(RO) of the Department of Veterans Affairs (VA), in San Juan,
the Commonwealth of Puerto Rico, which denied the issue on
appeal.
FINDINGS OF FACT
1. The VA has fulfilled its notice and duty to assist to the
appellant by obtaining and fully developing all relevant
evidence necessary for the equitable disposition of the
issues addressed in this decision.
2. Competent medical evidence does not show that any
acquired psychiatric disorder, first clinically manifested
many years after service discharge, is related to active
duty.
3. The appellant does not have a diagnosis of PTSD based
upon a verified in-service stressor.
CONCLUSIONS OF LAW
1. An acquired psychiatric disorder was not incurred in or
aggravated by active service. 38 U.S.C.A. §§ 1110, 5103A,
5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.304
(2005).
2. PTSD was not incurred in or aggravated by active service.
38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2005); 38
C.F.R. §§ 3.303, 3.304(f) (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The VCAA describes VA's duty to notify and assist claimants
in substantiating a claim for VA benefits. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp.
2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)
(2005).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2004);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in her or his possession
that pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable Agency of Original
Jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
In this case, for the reasons set forth below, the VA has
complied with the VCAA, as well as the implementing
regulations, in reference to the issue addressed in this
decision.
The veteran has been informed of the evidence needed to show
his entitlement to service connection via a RO duty to assist
letter issued in November 2002, the March 2003 rating
decision, and the February 2004 statement of the case. He
was advised that it was his responsibility to either send
medical treatment records from his private physician
regarding treatment, or to provide a properly executed
release so that VA could request the records for him. The
veteran was also asked to advise VA if there were any other
information or evidence he considered relevant to this claim
so that VA could help by getting that evidence. Thus, no
further notices are required. See Quartuccio, supra.
Secondly, VA has a duty to assist the claimant in obtaining
evidence necessary to substantiate the case. 38 U.S.C.A. §
5103A (West 2002 & Supp. 2005); 38 C.F.R.
§ 3.159(c). In this case, all identified and available
evidence has been obtained, including all relevant treatment
records and examination reports. Thus, the Board finds that
no additional evidence, which may aid the veteran's claim or
might be pertinent to the bases of the claim, has been
submitted, identified or remains outstanding, and the duty to
assist requirement has been satisfied. See Quartuccio,
supra.
Law and Regulations
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military, naval, or air service. See 38 U.S.C.A. §§ 1110,
1131 (West 2002); 38 C.F.R. §§ 3.1(k), 3.303(a) (2004).
Where a veteran who served for ninety days or more during a
period of war (or during peacetime service after December 31,
1946) develops certain chronic diseases, such as psychosis,
to a degree of 10 percent or more within one year from
separation from service, such diseases may be presumed to
have been incurred in service even though there is no
evidence of such disease during the period of service. This
presumption is rebuttable by affirmative evidence to the
contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West
2002 & Supp. 2005); 38 C.F.R. §§ 3.307, 3.309 (2004).
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d). Further, if a
condition noted during service is not shown to be chronic,
then generally, a showing of continuity of symptoms after
service is required for service connection. See 38 C.F.R.
§ 3.303(b).
The United States Court of Appeals for the Federal Circuit
(Federal Circuit) has held that a veteran seeking disability
benefits must establish the existence of a disability and a
connection between service and the disability. Boyer v.
West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Medical evidence
is required to prove the existence of a current disability
and to fulfill the nexus requirement. Lay or medical
evidence, as appropriate, may be used to substantiate service
incurrence.
The United States Court of Appeals for Veterans Claims
(Court) has held that "where the determinative issue involves
medical causation or a medical diagnosis, competent medical
evidence is required." Grottveit v. Brown, 5 Vet. App. 91,
93 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492,
494 (1992) (holding that a witness must be competent in order
for his statements or testimony to be probative as to the
facts under consideration). The Court has also held that
"Congress specifically limits entitlement for service-
connected disease or injury to cases where such incidents
have resulted in a disability. In the absence of proof of a
present disability there can be no valid claim." Brammer v.
Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v.
Derwinski, 2 Vet. App. 141, 143-44 (1992).
In determining whether evidence submitted by a veteran is
credible the Board may consider internal consistency, facial
plausibility, and consistency with other evidence. Caluza v.
Brown, 7 Vet. App. 498, 511 (1995).
Analysis
The appellant's principal argument is that his psychiatric
disorders, to include PTSD, had their onset during active
duty. The veteran's service records reveal that he served in
Vietnam from November 1966 to November 1967.
The service medical records, including treatment records do
not show complaints, treatment, or diagnosis of a psychiatric
disability or PTSD. Separation examination in November 1967
shows no symptomatology attributable to a psychiatric
disability.
The post-service medical records likewise do not demonstrate
the presence of a chronic psychiatric disorder until 1996.
In this regard, in a private medical report, Jose R.
Rodriguez Cay, M. D., reported that according to the history
provided by the veteran, he was suffering from symptoms
compatible with PTSD and depression.
VA outpatient treatment records dated from April 2001 to
January 2003 reflect diagnoses of depression, PTSD and an
organic affective disorder.
The veteran underwent a VA psychiatric examination in January
2003. Following review of the claims folder and examination
of veteran, the diagnosis was major depression. The examiner
added that the veteran's present disorder is a consequence of
multiple negative life experiences including that of military
service, but there are no actual combat related stressors to
account for his present symptoms.
Post-service medical records in no way link the veteran's
current psychiatric disability to an incident of service
except for the opinion of the appellant's treating
psychiatrist. In his December 2002 report, he opined that
history provided by the veteran indicates he was exposed to
various severe psychosocial stressors and worsen his
emotional condition. He further noted that in his
professional opinion the veteran's emotional condition is a
direct consequence of the stressors he was exposed to during
active service. Dr. Rodriguez Cay provided diagnoses of
major depression and PTSD.
The Board finds that the opinions of Dr. Rodriguez Cay are
not definite as to the question of whether the veteran's
psychiatric disorder is related to service. The Board is not
bound to accept medical opinions or conclusions, which are
based on a history supplied by the veteran, where that
history is unsupported by the medical evidence. See Black v.
Brown, 5 Vet. App. 177, 180 (1993). The VA examiner in
January 2003 found, based on review of the claims folder,
that the veteran does not have PTSD. Further, while he was
diagnosed as suffering from major depression, the disability
was not related to service.
Based on the foregoing, the Board finds the opinion of the VA
psychiatrist who conducted the VA psychiatric examination to
be more probative than the opinion of the appellant's
treating psychiatrist. A preponderance of the evidence is
against the appellant's claim of entitlement to service
connection for a psychiatric disorder, there being no
probative demonstration of the presence of depression or any
other psychiatric disorder until the 1990's, years following
the appellant's separation from service.
The Board recognizes the statements of the appellant to the
effect that he has had psychiatric problems since separation
from service. As a layperson, with no apparent medical
expertise or training, is not competent to comment on the
presence, or etiology, of a medical disorder. Rather,
medical evidence is needed to that effect. See Lathan v.
Brown, 7 Vet. App. 359, 365 (1995). Thus, the statements do
not establish the required evidence needed, that is, a nexus
between the veteran's service and his psychiatric disorder.
See Espiritu, 2 Vet. App. at 494-95.
With regard to PTSD, VA regulations reflect that symptoms
attributable to PTSD are often not manifest in service.
Accordingly, service connection for PTSD requires a current
medical diagnosis of PTSD (presumed to include the adequacy
of the PTSD symptomatology and the sufficiency of a claimed
in-service stressor), credible supporting evidence that the
claimed in-service stressor(s) actually occurred, and medical
evidence of a causal nexus between current symptomatology and
the specific claimed in-service stressor(s). See 38 C.F.R. §
3.304(f) (2004);
see also Cohen, 10 Vet. App. at 138 (citing Moreau v. Brown,
9 Vet. App. 389, 394-95 (1996)).
Specifically, to establish entitlement to service connection
for PTSD under the former regulation, the veteran must submit
"...medical evidence establishing a clear diagnosis of the
condition, credible supporting evidence that the claimed in-
service stressor actually occurred, and a link, established
by medical evidence, between current symptomatology and the
claimed in-service stressor. 38 C.F.R. § 3.304 (1996).
Under the revised regulation, the veteran must submit
"...medical evidence diagnosing the condition in accordance
with Sec. 4.125(a) of this chapter; a link, established by
medical evidence, between current symptoms and an in-service
stressor; and credible supporting evidence that the claimed
in-service stressor occurred. 38 C.F.R. § 3.304(f) (2004).
The evidence necessary to establish the occurrence of a
stressor during service to support a claim for PTSD will vary
depending on whether the veteran was "engaged in combat with
the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993).
If the evidence establishes that the veteran was engaged in
combat with the enemy or was a prisoner of war (POW), and the
claimed stressor is related to combat or POW experiences (in
the absence of clear and convincing evidence to the contrary,
and provided that the claimed stressors are consistent with
the circumstances, conditions, or hardships of the veteran's
service), the veteran's lay testimony alone may establish the
occurrence of the claimed in-service stressor.
Where, however, VA determines that the veteran did not engage
in combat with the enemy and was not a POW, or the claimed
stressor is not related to combat or POW experiences, the
veteran's lay statements, by themselves, will not be enough
to establish the occurrence of the alleged stressor.
Instead, the record must contain service records or other
credible evidence, which corroborates the stressor.
38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f)
(2004); Gaines v. West, 11 Vet. App. 353, 357-58 (1998).
Such corroborating evidence cannot consist solely of after-
the-fact medical nexus evidence. See Moreau, 9 Vet. App. at
396.
In terms of PTSD, the most recent VA psychiatric examination
in 2003 fully ruled out the possibility of a diagnosis of
PTSD. Under the circumstances, the Board finds that a
preponderance of the evidence is against the claim for PTSD.
Although the record contains a medical diagnosis of PTSD, as
evidence by the Dr. Rodriguez Cay, that diagnosis was based
upon the appellant's alleged, unverified service history of
stressors without review of the appellant's claims folder.
Mere acquiescence with the appellant's contentions does not
constitute competent medical evidence of diagnosis or
causality. LeShore v. Brown, 8 Vet. App. 406 (1996). The
2003 VA examiner opined that the criteria for PTSD were not
met. Unlike Dr. Rodriguez Cay, who had given the appellant a
diagnosis of possible PTSD, the 2003 VA examiner found no
symptoms of PTSD in accordance with 38 C.F.R. § 4.125(a).
Thus, there is no competent evidence that the appellant has
PTSD related to a verified stressor.
Under the circumstances described above, it is the Board's
judgment that no reasonable possibility exists that further
assistance would aid in substantiating the claim. 38
U.S.C.A. § 5103A(a)(2) (West 2002). The appellant's claim
for service connection for PTSD therefore fails on the basis
that the preponderance of the evidence is against the claim
that he has PTSD due to a verified stressor from service.
Under the circumstances here, the Board finds that the
preponderance of the evidence is against the appellant's
claim for service connection for an acquired psychiatric
disorder, to include PTSD, and the benefit of the doubt rule
is inapplicable. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §
3.102 (2002); see Gilbert v. Derwinski, 1 Vet. App. 49
(1990). Therefore, the claim must be denied.
ORDER
Service connection for an acquired psychiatric disorder, to
include PTSD is denied.
____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs